Affordable housing fight brewing in Delran

David Levinsky @davidlevinskyTodd McHale @toddmchale

Sunday

Jul 23, 2017 at 12:01 AMJul 23, 2017 at 5:00 AM

DELRAN — The long-standing court battle over affordable housing and whether New Jersey towns are doing enough to make it available within their borders may have originated in Mount Laurel, but the fight is coming to Delran.

The 7-square-mile suburb along the Delaware River and mouth of the Rancocas Creek is being sued by the Fair Share Housing Center. The nonprofit advocacy group alleges that the Township Council is trying to skirt its affordable housing obligations by claiming there isn't enough vacant space for substantially more low-income homes or apartments, even though the Planning Board recently approved the development of two large age-restricted housing projects. Neither included affordable units.

The group, which believes the township should be planning for hundreds of additional affordable units over the next decade, is seeking a court order to prevent the projects from moving forward until a decision is reached on Delran's housing obligation.

Fair Share isn't the only one taking issue with the municipality's housing plans.

Two developers have also entered the legal battle, arguing that they are interested in building communities with low-income housing in different parts of town, but in at least one of the cases, the township has refused to rezone the land to permit the proposed high-density development.

Anthony Campisi, Fair Share's spokesman, said Delran's actions could be interpreted as "fraud," and he rated the township as one of the worst actors in the state when it comes to avoiding their constitutionally mandated affordable housing obligation.

"They seem intent on locking out working families in New Jersey and doing anything they can to drag this on," Campisi said. "They haven't complied. They're probably one of the worst municipalities in the state given the games they're playing."

Delran officials countered that their intent in approving age-restricted housing was to keep the township affordable by expanding its tax base without overburdening the school system with new children.

The township's average property tax bill has grown by close to 8 percent over the last three years, from $6,817 in 2013 to $7,381 last year, according to tax records posted by the New Jersey Department of Community Affairs.

"We felt those (age-restricted communities) would have a minimal impact on schools and be good for Delran," Mayor Ken Paris said Thursday.

At the heart of all the legal wrangling are the series of New Jersey Supreme Court decisions establishing that towns have a constitutional obligation to provide opportunities for adequate affordable housing.

The litigation began in the 1970s, when housing advocate Ethel Lawrence and the NAACP sued Mount Laurel for using zoning to keep out low-income housing.

Achieving compliance with those court orders has been challenging and has sparked years of debate, legislation and even more litigation, including a 2015 Supreme Court ruling ordering lower courts to take over affordable housing compliance from the state Council of Affordable Housing, the agency created by the Legislature to enforce the housing laws and mandates. The takeover stemmed from COAH's failure to craft adequate rules and quotas for how many low- and moderate-income homes towns must zone and plan for.

In the wake of the takeover, municipalities must submit housing plans to Superior Court to review. The plans are expected to spell out how many affordable homes and apartments the town expects will be developed over the next decade, approximately where the development is expected, and what steps the town plans to take to encourage the development.

If a judge decides the plan is adequate, the town will be granted protection from lawsuits by developers and nonprofits, called builders remedy lawsuits, that can force it to approve low-income housing if there isn't adequate housing available or planned.

Since the high court's order, hundreds of communities have been involved in litigation over the number of affordable units they need, with Fair Share acting as an intervener.

Delran is one of the towns seeking court protection.

The municipality's 2016 housing plan submitted for court approval specifies that officials believe there is a realistic potential for the development of 44 affordable units based on the available vacant land.

Fair Share argues that the town's obligation is substantially more, closer to 800 units, and that the vacant land-use study submitted in February 2016 failed to factor in the 76 acres of available land for the Timber Ridge development, a proposed 108-unit age-restricted community planned on the former Willow Brook Country Club off Bridgeboro Road.

The development, by Timber Ridge LLC, received preliminary major site-plan approval from the Planning Board in May 2016, but Delran contends that the project was in the works well before then and was the result of a 2009 settlement agreement between the landowners and the municipality over the zoning.

The adopted ordinance specified that the development would be market-rate units only and would include no affordable units. Fair Share never contested the ordinance.

In July 2016, Delran also approved a redevelopment plan for the former Stellwag Farms off Hartford Road specifying that an 82-unit age-restricted community would be built there. That plan also calls for no affordable homes.

"These are lost opportunities we thus far are aware of, but in view of the pattern of disregard for its (affordable housing) responsibilities, there are likely other examples," Fair Share counsel Kevin Walsh wrote in a January letter to Superior Court Judge Paula Dow, who is considering Delran's housing plan.

Walsh's letter asked Dow to allow Fair Share to intervene in the case, and to order so-called "scarce resource restraints" preventing the municipality from allowing the two developments to proceed or the township from approving any additional development, without the court's consent.

Fair Share has estimated that the Timber Ridge site alone has room for 228 affordable homes, and that without action by the court, the opportunity for low- and moderate-income families will be lost.

"Without an injunction on future conduct that further exacerbates the scarcity of development and redevelopment opportunities, the municipality's misconduct will continue and the public interest will be harmed," Walsh wrote.

The judge has made no decision in the case.

In addition to Fair Share's legal filings, two other low-income developers have entered the legal battle.

Chester Avenue Developers LLC is interested in developing 23 acres off Chester Avenue owned by Holy Cross Academy as multifamily housing. It claims in court papers that the municipality has refused to consider rezoning the site for that purpose.

More recently, Atlantic Delta Corp. purchased close to 15 acres off Route 130 near Haines Mill Road that it believes is suitable for 240 multifamily apartments or a similar development with at least 36 affordable units.

Neither developer is permitted to file a builders remedy action because Delran still enjoys temporary immunity from such actions. But Fair Share plans to argue that the immunity should be lifted.

"As it stands now, we think they're really bad actors and aren't acting in good faith at all," Campisi said.

Dow is expected to consider that issue in September, he said.

Paris said the township is preparing for what could become a protracted legal battle over the proposed developments and how many more affordable homes are needed.

"Our (housing) experts came up with a number, and (Fair Share) thinks it should be higher," the mayor said, adding that the municipality plans to hold a special public meeting to discuss the litigation.

"We want to make sure our residents are informed about what's going on, what the litigation is about and where we're at," Paris said. "We want to make things very transparent."

Council President Gary Catrambone said the township has been working for years to keep development at a minimum to help control property taxes and school overcrowding.

"Specifically, the developer at Willow Brook, we've been working for over five years to get the right number of units that hopefully will have zero impact on the schools, because they are age-restricted and (have) very little impact, if any, on their close neighbors," Catrambone said.

"The developer of the old Stellwag property understood that this council and the mayor would work with them if they were proposing age-restricted housing, and they did," he said.

Tim Prime, an attorney representing the Timber Ridge developers, said the company would join Delran in fighting Fair Share's request to put a hold on that development.

"Obviously, we have a valid approval given to use by the Planning Board," Prime said. "We believe we have the right to proceed."

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